K. Ravichandra Babu, J.

1. The Appellant is the Plaintiff in a Suit for Specific Performance of an Agreement of Sale. The case of the Plaintiff is that the Defendant agreed to sell the Suit property for a total consideration of Rs. 1,00,000/- and received a sum of Rs. 50,000/- as advance and executed the Suit Agreement on 18.06.2003. It is his further case that even though he prepared the Draft Sale Deed and sent it to the Defendant in the month of September 2003 itself, for the Defendant to perform his part of the Contract within the time stipulated in the Agreement, the Defendant did not come forward to perform his part of the Contract. The Plaintiff sent Suit Notice on 6.7.2004 calling upon the Defendant to receive the balance sale consideration and to execute the Sale Deed. The Defendant sent a reply on 16.7.2004 disputing his liability to perform his part of the Contract by stating that the time fixed under the Agreement for the parties to perform the Contract, namely six months, has already expired. After receipt of the said Notice, the Plaintiff filed the Suit on 15.12.2006. The contention of the Defendant is that in the Agreement entered between the parties it was specifically agreed that the time was the essence of the Contract and therefore, the Plaintiff having not performed his part of the Contract within the time stipulated, namely, six months, the Defendant cannot be compelled to execute the Sale Deed.

2. The Trial Court, upon considering the rival pleadings of the parties and the evidence let in by them and appreciation of facts and circumstances, dismissed the Suit on the ground that the time is the essence of the Contract and the Plaintiff has not proved his readiness and willingness all throughout the proceedings commencing from the date of the Agreement till the date of filing of the Suit. The Appeal filed before the Lower Appellate Court also came to be dismissed by confirming the findings rendered by the Trial Court. Aggrieved against the concurrent findings of both the Courts below, the Plaintiff has filed the present Appeal and the same is posted before me at the adjourned admission stage.

3. Heard the learned Counsel appearing for the Appellant and the learned Counsel appearing for the Respondent and perused the materials placed before this Court.

4. It is the contention of the learned Counsel for the Appellant that when the Courts below have come to the conclusion that the Suit was filed within the period of limitation, they ought not to have dismissed the Suit especially when the Plaintiff has shown his readiness and willingness by issuing a notice to perform his part of the Contract. She further submitted that even before issuance of such Notice, the conduct of the Plaintiff in sending the Draft Sale Deed to the Defendant within three months from the date of the Agreement would show that the Plaintiff was ready and willing to perform his part of the Contract always. Therefore, she submitted that the mere delay in filing the Suit from the date of receipt of the Reply Notice itself cannot be put against the Plaintiff to deny the relief.

5. Per contra, learned Counsel for the Respondent contended that the time is the essence of Contract and the Agreement clearly speaks about the same. Thus, he contended that the very conduct of the Plaintiff in sending the Notice itself on 6.7.2004 nearly after one year from the date of the Agreement and filing the Suit thereafter on 15.12.2006 which again was after 2½ years from the date of receipt of the Reply Notice would show that the Plaintiff was not ready and willing to perform his part of the Contract within the stipulated time. Learned Counsel further contended that since the terms of the Agreement also contemplated that the advance paid by the Plaintiff would be forfeited if the Agreement-holder did not complete the sale transaction within the time stipulated, the Plaintiff is not entitled to the relief of refund also. He further contended that even other